Gur Mehar Swanni vs Virender Kumar Bhatnagar & Ors.
2012 Latest Caselaw 3123 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.133/2012

%                                                           10th May, 2012

         GUR MEHAR SWANNI                                  ..... Appellant
                     Through:            Mr. Vivek B. Saharya, Adv.

                      versus


         VIRENDER KUMAR BHATNAGAR & ORS. ..... Respondents

Through: Mr. Pramod Gupta with Mr. Udit Gupta, Advs.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal filed under Section 96 of the Code

of Civil Procedure, 1908 (CPC) impugns the judgment of the Trial Court

dated 5.4.2008 rejecting the plaint on account of non-compliance of the

earlier order dated 10.9.2007, and which earlier order dated 10.9.2007

directed the plaintiff to pay proper Court fees on the plaint as per the causes

of action and reliefs claimed in the plaint.

2. If we look at the amendment application as has been filed by

the appellant/plaintiff after the passing of the order dated 10.9.2007, it is

found that the application partly does not inspire confidence inasmuch as so

far as the relief of cancellation of documents is concerned, it is alleged that

the fixed Court fees is payable though however when a document is sought

to be cancelled, Court fees will be payable on the value of the document, to

the extent the document is sought to be cancelled and in this case which

would be the appellant's/plaintiff's share of `12,31,250/-. Therefore, the

amendment application is not correct in averring that only a fixed Court

fees is payable.

3. At this stage, counsel for the appellant/plaintiff states that the

appellant/plaintiff agrees to pay Court fees on `12,31,250/- in addition to

the Court fees already paid on that very value of Rs,12,31,250/- inasmuch

as so far as the existing relief of cancellation of the sale deed for the value

of the share of the appellant/plaintiff at Rs,12,31,250/- is concerned, Court

fees has already been paid of `16449/-, and therefore, now Court fees of

`16449 will be paid qua the relief of possession which is claimed. So far

as the relief of pendente lite damages is concerned, Court fees will only be

payable when the decree is passed and the amount of damages is assessed.

So far as the relief of declaration is concerned, the same, in my opinion,

may be redundant once the relief of cancellation of the documents qua the

appellant's/plaintiff's share is sought and Court fees is already paid ad

valorem on the appellant's/plaintiff's share of `12,31,250/-.

4. Accordingly, this appeal is disposed of with the following

directions:

i) The appellant/plaintiff is granted opportunity to make payment

of the Court fees on the amount of `12,31,250/-, and which will be the

value for the purposes of additional relief of possession, i.e. in

addition to the relief of cancellation of documents which is already

valued at `12,31,250/- and on which Court fees of `16,499/- has

already been paid. Additional Court fees of `16,499/- will be paid.

ii) The subject suit will be a suit seeking reliefs of cancellation of

the documents and possession qua the share of the appellant/plaintiff,

and which will naturally imply the pre condition of grant of partition

because only thereafter, possession would be delivered, assuming that

is the relief which can be granted in law.

iii) The further reliefs in the suit will be towards declaration

valued at `200/- on which Court fees of `20/- has already been paid.

5. The observations made in the present manner are in no manner

reflection on the merits of the case of either or the parties and issues of

merits including the issue (if the same arises) of maintainability of the suit,

will be decided by the competent Court in accordance with law.

6. Since it is the appellant/plaintiff who has caused this litigation,

inasmuch as the appellant/plaintiff failed to comply with the earlier order of

the Trial Court dated 10.9.2007 by not paying the Court fees, the

appellant/plaintiff will be liable to pay costs of `20,000/- to the respondent

no.1. Costs shall be paid within a period of 8 weeks from today.

7. The appeal is disposed of in terms of the aforesaid

observations. Appellant/plaintiff in terms of the aforesaid observations

agrees to file an amended plaint before the District and Sessions Judge,

Delhi alongwith the additional Court fees on 23.7.2012, the date which is

fixed before the District and Sessions Judge, Delhi.

8. Parties to appear before the District and Sessions Judge, Delhi

on 23.7.12, and on which date, the District and Sessions Judge, Delhi will

mark the suit to a competent Court for disposal in accordance with law.

9. At this stage, counsel for both the parties state that as a result

of the plaint being amended to claim the reliefs of cancellation of

documents and possession, the pecuniary jurisdiction value will total to at

least `24,62,500/-, and since the Court of an ADJ will not have the

pecuniary jurisdiction to try the suit, the pecuniary jurisdiction will be of

this Court in exercise of its ordinary civil jurisdiction. Accordingly, the District

and Sessions Judge, Delhi on the date fixed, will call for the records of the

complete suit, and will send the suit as a whole to the Original Side of this

Court by fixing a date for appearance before the Registrar General

(Original Side) of this Court. With the consent of the parties, I am

exercising these powers under Section 24 CPC.

10. Appeal is disposed of in terms of the aforesaid observations.

VALMIKI J. MEHTA, J MAY 10, 2012 ak